Ford v. Mabus

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 24, 2010 Decided December 10, 2010

No. 09-5041

RICHARD T. FORD,

APPELLANT

v.

RAYMOND EDWIN MABUS, JR., SECRETARY OF THE NAVY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-00507)

Michael G. Kane argued the cause for appellant. With

him on the briefs was David R. Cashdan.

Daniel B. Kohrman and Melvin Radowitz were on the

brief for amicus curiae AARP in support of appellant.

Christian A. Natiello, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Ronald C.

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney.

Before: SENTELLE, Chief Judge, HENDERSON and TATEL,

Circuit Judges.

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Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in the judgment filed by Circuit

Judge HENDERSON.

TATEL, Circuit Judge: Appellant, a federal government

employee, alleges discrimination on the basis of age in

violation of section 633a of the Age Discrimination in

Employment Act (ADEA). The district court applied the

McDonnell Douglas framework and found that appellant had

failed to meet his ultimate burden of proving that age was the

but-for cause of the challenged action. Seeing error in neither

the district court’s fact-findings nor its evidentiary rulings, we

affirm that portion of its judgment. But because of what this

court has called section 633a’s “sweeping” language—“all

[federal government] personnel actions . . . shall be made free

from any discrimination based on age”—we hold that

plaintiffs may also establish liability, though not necessarily

entitlement to such remedies as reinstatement and backpay, by

showing that consideration of age was a factor in the

challenged personnel action. We therefore reverse the entry

of judgment for the government and remand for further

proceedings consistent with this opinion.

I.

Born December 21, 1940, appellant Richard Ford is an

engineer who works on a variety of issues related to

electromagnetic effects. With the exception of a brief hiatus

in the private sector from 1984 to 1986, Ford worked in

various capacities for the Department of the Navy from 1964

to 1997. In the 1970s, Ford participated in founding

SEMCIP, a program focused on testing and improving ship

systems to reduce electromagnetic problems. Although Ford

retired in 1997, he continued working as a consultant both for

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the Navy and in the private sector. In 2005, he returned as a

full-time Navy employee in order to reindex his pension.

In January of 2006, Ford applied to be branch head of

NAVSEA, the Naval Sea Systems Command, a position that

includes oversight of the SEMCIP program. Because the

prior branch head had also served as Technical Warrant

Holder, a position responsible for oversight of technological

developments and design standards, Ford believed he was

applying for that position as well.

Before Ford was interviewed for the branch head

position, Mark Johnson, twenty-five years Ford’s junior, was

selected as Technical Warrant Holder by a hiring panel

consisting of three high-ranking Navy engineers, Patrick

Hartman, James Meng, and Vance Brahosky. The

interviewing panel for the branch head position included

Brahosky, as well as Paul Mann, another high-ranking Navy

engineer. The panel recommended to Meng, the hiring

official, that the branch head position also go to Mark

Johnson. According to the testimony of Edward Wallace, a

former NAVSEA employee who claims he was forced out

because of his age, Meng had made numerous comments

about the negative impact of an aging workforce on the health

of the organization and about the need for younger

employees. Brahosky testified that he drafted a memo to

Meng explaining the recommendation, but in discovery he

was unable to produce that memo. When Brahosky phoned

Ford to inform him that Johnson had been given the job,

Brahosky explained that the decision turned on Ford’s lack of

“topside design experience” and on his statement during the

interview that he had trouble dealing with bureaucracy. Ford

challenged both explanations. He then set up a meeting with

Paul Mann during which Mann told him that his references

were negative but refused to reveal which references he had

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contacted. Asked directly by Ford whether age had played a

role in the decision, Mann answered no.

Ford sued the Secretary of the Navy under ADEA section

633a, which prohibits discrimination based on age in federal

employment. Following a bench trial, the district court found

that although the hiring process was “tinged” with

consideration of age, Ford had failed to show either that age

was a determining factor, as required by the McDonnell

Douglas Corp. v. Green pretext analysis, 411 U.S. 792

(1973), or that age was a motivating or substantial factor, as

required by the mixed-motives analysis set forth in Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989). On appeal,

Ford challenges both rulings.

II.

We begin with the district court’s application of the

McDonnell Douglas framework, under which the employer,

once the plaintiff has made out a prima facie case, bears the

burden of producing a non-discriminatory explanation for the

challenged personnel action. See McDonnell Douglas, 411

U.S. at 802–03 (laying out this test); Krodel v. Young, 748

F.2d 701, 705 (D.C. Cir. 1984) (applying McDonnell Douglas

to ADEA cases). The plaintiff, however, bears the ultimate

burden of proving that discriminatory animus was the

determining or but-for cause of the personnel action. See

McDonnell Douglas, 411 U.S. at 803–05. The plaintiff may

satisfy this burden “either indirectly by showing the

employer’s reason is pretextual or directly by showing that it

was more likely than not that the employer was motivated by

discrimination.” Forman v. Small, 271 F.3d 285, 292 (D.C.

Cir. 2001).

In this case the district court applied McDonnell Douglas

and found that age was not the but-for cause of the Navy’s

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decision to promote Johnson instead of Ford. Ford challenges

this conclusion and a number of related fact-findings, which

we review under a “clearly erroneous” standard. Fed. R. Civ.

P. 52(a)(6). Specifically, we set aside district court fact-

findings only if we are “left with the definite and firm

conviction that a mistake has been committed.” United States

v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

Ford first argues that the district court attached

insufficient significance to evidence of age bias. In support,

he points to Meng’s comments at staff meetings, to Wallace’s

testimony about his own experiences, and to the Navy’s so-

called Human Digital Dashboard, which monitors the health

of the Technical Warrant Holder hierarchy by tracking ages of

warrant holders and their support staffs. Based on this

evidence, the district court concluded that although the Navy

was cognizant of its aging workforce, Ford had failed to

establish a sufficient nexus between the personnel action and

the Navy’s consideration of age. See Hall v. Giant Food, Inc.,

175 F.3d 1074, 1079–81 (D.C. Cir. 1999) (implementing

requirement for such a link). As the district court observed,

there is a difference between macro level institutional

interests—expressed in the evidence presented by Ford—and

individual day-to-day decisions. Certainly the former sheds

light on the latter, but it was for the finder of fact to decide

whether enough light was shed, and given the circumstantial

nature of the evidence and our highly deferential standard of

review, Ford has offered us no basis for setting aside the

district court’s fact-finding.

Ford next contends that the district court erred in

crediting Brahosky’s explanation for the promotion decision.

Addressing the Technical Warrant Holder hiring process in

particular, Ford described Brahosky as cagey, pointing out

that he denied participating in the process but then admitted to

6

doing so when shown documentary evidence that he had

attended the meeting. Ford also argues that given the timing

of the two hirings, Brahosky’s inconsistency reveals that

NAVSEA rushed the Technical Warrant Holder hiring

process to give Johnson, the younger candidate, an advantage

for the branch head position. But the district court declined to

make the logical leaps Ford’s argument required, and Ford

has given us no basis for second-guessing that judgment.

In a related claim, Ford argues that the district court erred

in crediting Brahosky’s testimony despite its inconsistencies.

Brahosky initially told Ford that he failed to get the job

because of his trouble dealing with bureaucracy and his lack

of topside design experience, yet on the stand Brahosky

acknowledged Ford’s topside design experience, pointing

instead to his lack of topside integration experience, as well

as to his lack of financial management experience. Although

this shift indeed qualifies as evidence of pretext, cf. Jones v.

Barnhart, 349 F.3d 1260, 1266 (10th Cir. 2003), the Navy’s

explanation—that Brahosky’s interview notes emphasize his

concerns regarding integration rather than design and that

Brahosky’s testimony about financial management is “merely

[an] additional rationale[],” Appellee’s Br. 20—supports the

district court’s conclusion that the inconsistency was not

dispositive of pretext. Likewise, the missing recommendation

memo, which also led the district court to question

Brahosky’s credibility, was simply one factor of many for

proof of pretext. Despite the district court’s suspicion about

Brahosky’s credibility, we find ourselves far from a “definite

and firm conviction,” U.S. Gypsum Co., 333 U.S. at 395, that

the district court erred in finding the proffered reasons for the

employment decision to be credible.

Next, Ford claims that the district court erred in failing to

find that he was a significantly better candidate than Johnson.

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Ford points to his own forty years of experience and notes

that the whole first page of Johnson’s resume deals with just

two months of work and that the second deals with just two

years. The Navy counters that, as Ford conceded in testimony

before the district court, Johnson actually had over twenty

years of relevant experience. Although the district court may

not substitute its judgment for that of the employer regarding

an applicant’s job qualifications, it “could infer discrimination

if the evidence showed a reasonable employer would have

found plaintiff significantly better qualified for the job.”

Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006); cf.

Cuddy v. Carmen, 762 F.2d 119, 127 (D.C. Cir. 1985) (Cuddy

II) (finding that statement made by the hiring official that he

selected one candidate over another because the selected-

candidate was best qualified was “far from overwhelming”

but was “substantial enough to support the finding” that the

employer had a legitimate reason for its decision). Here,

although Ford’s qualifications are impressive and although

the hiring committee appeared to give great weight to

Johnson’s two months as interim branch head, the district

court accepted Brahosky’s testimony that Johnson was

qualified for the job and that the choice between the

candidates was difficult. Absent evidence that Ford was

“significantly better qualified” than Johnson, Holcomb, 433

F.3d at 897, the district court did not err, much less clearly so,

by refusing to draw an inference of discrimination.

Ford also challenges several of the district court’s

evidentiary rulings. Our review is for abuse of discretion.

Muldrow v. Re-Direct, Inc., 493 F.3d 160, 166 (D.C. Cir.

2007) (stating this standard).

Ford first argues that the district court erred by relying on

Mann’s testimony that he made his hiring decision in large

part because of a conversation with Ron Bradley, the branch

8

head Johnson was hired to replace. Bradley told Mann that

Ford had “axes to grind” and was not a team player. Trial Tr.

at 298 (Dec. 16, 2008) (included at J.A. 330). At trial, Ford’s

counsel objected on the grounds of hearsay and relevance.

Here Ford reiterates both points. Ford insists that the

evidence was irrelevant because the conversation occurred

after Brahosky had made up his mind. As the Navy points

out, however, the conversation occurred before Mann told

Brahosky that he would support the recommendation to hire

Johnson. While Brahosky claimed not to have been

influenced by Bradley’s comments or to have received

feedback on the decision from Mann, Mann testified that he

signed off on Brahosky’s recommendation. Given that Mann

was extremely enthusiastic about Ford during the interview

but then supported the recommendation to hire Johnson, it is

hardly surprising that the district court found that the phone

call with Bradley “goes a long way” toward explaining the

decision. Trial Tr. at 320 (Dec. 16, 2008) (included at J.A.

352). If Brahosky had sole authority to make the decision,

Bradley’s comments would be irrelevant, but because Mann

also weighed in, the factors shaping his decision were fair

game for the court to rely on. As to Ford’s hearsay argument,

nowhere in his brief does he explain why the challenged

statement, which the district court admitted as evidence of

Mann’s motives rather than for the truth of its content, is

nonetheless hearsay.

Finally, Ford challenges the district court’s exclusion of

Wallace’s age discrimination complaint on the grounds that it

was irrelevant to Ford’s claim. A retired NAVSEA

employee, Wallace alleged that NAVSEA forced him out

because of his age. According to Ford, Wallace’s complaint

demonstrates the discriminatory atmosphere in which he was

working and reveals the states of mind of the same set of

decisionmakers. In order to prevail, however, Ford must

9

demonstrate not only that the exclusion amounted to an abuse

of discretion, but also that it affected his “substantial rights.”

Whitbeck v. Vital Signs, Inc., 159 F.3d 1369, 1372 (D.C. Cir.

1998). Given that Wallace’s testimony covered the same

ground as Wallace’s complaint, Ford has failed to meet this

demanding burden.

III.

We thus turn to Ford’s argument that even if his

challenges to the district court’s application of the McDonnell

Douglas test fail, he may nonetheless prevail under Price

Waterhouse. In that case, which arose under Title VII of the

Civil Rights Act of 1964, the Supreme Court held that a

plaintiff can prevail where the employer acted with mixed

motives. Specifically, “once a plaintiff . . . shows that

[discriminatory animus] played a motivating part in an

employment decision, the [employer] may avoid a finding of

liability only by proving that it would have made the same

decision even if it had not allowed [discriminatory animus] to

play such a role.” Price Waterhouse, 490 U.S. at 244–45.

Acknowledging this alternative approach, the district

court asked for supplemental briefing on “whether an

employer will be liable for age discrimination if the

employment decision is infected in some way by age

discrimination, even if it may not have been the determinative

factor.” Trial Tr. at 321 (Dec. 16, 2008) (included at J.A.

353). Although the court was persuaded to apply a mixed-

motives analysis, it concluded that Ford had failed to meet his

threshold burden, observing that “[i]t does not strike me as

inappropriate, unlawful, or even non-PC for the Navy to take

a look at the resources it has to deal with technical problems

and to decide for itself whether those resources are aging, and

to decide for itself that it needs to replenish those resources

with younger people. I don’t understand what the problem is

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with that.” Ford v. Winter, No. 08-0507, slip op. at 4 (D.D.C.

Jan. 15, 2009) (included at J.A. 631).

Ford argues that the district court “erred in determining

what kind of showing a plaintiff must make to establish the

‘motivating factor’ standard under Price Waterhouse.”

Appellant’s Br. 55. In response, the Secretary argues that in

Gross v. FBL Financial Services Inc., the Supreme Court

foreclosed any use of mixed-motives analysis in ADEA cases.

129 S. Ct. 2343 (2009). Gross arose under ADEA section

623, which prohibits age discrimination by private employers.

There the Court held that the burden never shifts to the

employer. Id. Gross, the Secretary insists, “is equally

applicable to this case and to the interpretation of § 633a.”

Appellee’s Br. 8.

Prior to Gross, the ADEA, which was modeled on Title

VII, was interpreted essentially in lockstep with that statute.

E.g., Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,

121 (1985). In Gross, however, the Supreme Court held that

because the Civil Rights Amendments of 1991 codified a

mixed-motives analysis for Title VII cases but not for ADEA

cases, “the Court’s interpretation of the ADEA is not

governed by Title VII decisions such as . . . Price

Waterhouse.” Gross, 123 S. Ct. at 2349. As a result, the

Court explained, its “inquiry . . . must focus on the text of the

ADEA to decide whether it authorizes a mixed-motives age

discrimination claim.” Id. at 2350. Examining that text, the

Court addressed two questions: what standard of causation

does section 623 impose, and does the statute authorize Price

Waterhouseesque burden shifting?

Considering the first question, the Court pointed out that

section 623 prohibits personnel decisions made “because of” a

person’s age and explained that the “ordinary meaning of . . .

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‘because of’ age is that age was the ‘reason’ that the employer

decided to act.” Id. Therefore, the Court held, section 623

requires that “a plaintiff must prove that age was the ‘but-for’

cause of the employer’s adverse decision.” Id.

Moving on to the second question, the Court explained

that “[w]here the statutory text is silent on the allocation of

the burden of persuasion, we begin with the ordinary default

rule that the plaintiffs bear the risk of failing to prove their

claims.” Gross, 123 S. Ct. at 2351 (internal citations and

quotation marks omitted). Nothing in section 623’s language,

the Court concluded, gave “warrant to depart from the general

rule in this setting.” Id.

According to the Secretary, Gross requires the same

outcome here, i.e., that section 633a creates a but-for standard

and offers “no warrant” to depart from the “default rule” that

places the burden of proof on the plaintiff. In support, the

Secretary emphasizes that the 1991 amendments to Title VII

no more amended section 633a than they amended section

623. As a result, the Secretary argues, the Supreme Court’s

holding in Gross that Price Waterhouse has no applicability

to section 623 applies with equal force to section 633a. So far

we agree. But the Secretary goes on to argue that Gross

requires us to hold that section 633a also creates a but-for test.

On this point, we disagree.

Beginning with Gross’s first question, we look, as that

decision directs, to the statute’s language. Section 633a

provides that “All personnel actions . . . shall be made free

from any discrimination based on age.” 29 U.S.C. § 633a(a).

By contrast, section 623, the provision at issue in Gross,

provides that “it shall be unlawful for an employer [to take a

personnel action] because of such individual’s age.” 29

U.S.C. § 623(a). Recognizing the “sharp[]” difference

12

between these two provisions, the Supreme Court in Gomez-

Perez v. Potter described section 633a as a “broad, general

ban on ‘discrimination based on age.’ ” 553 U.S. 474, 486,

488 (2008) (quoting § 633a). Indeed, as the Court had

explained in an earlier case, Congress chose not to include the

federal government in the ADEA’s definition of employer and

instead “deliberately prescribed a distinct statutory scheme

applicable only to the federal sector.” Lehman v. Nakshian,

453 U.S. 156, 166 (1981) (citing S. 3318, 92d Cong. (1972), a

bill introduced prior to the addition of section 633a that would

have added the federal government to the definition of

employer). For our part, we observed in Forman v. Small that

“Congress used sweeping language when it . . . extended the

ADEA to cover federal agency employees.” 271 F.3d 285,

296 (D.C. Cir. 2001). To be sure, in Cuddy v. Carmen

(Cuddy I), this court did suggest, as the Secretary emphasizes,

that the standard for proving violations under the two

provisions is the same, but that statement related to the

application of the McDonnell Douglas test, which operates

identically under both provisions. 694 F.2d 853, 856 (D.C.

Cir. 1982). In any event, the sentence in Cuddy I that the

Secretary cites is dictum, and the case predates both Forman

and Gomez-Perez.

The Secretary nonetheless argues that section 633a’s

language is sufficiently similar to section 623’s that it too

should be interpreted as requiring a but-for test. In support,

the Secretary relies on section 633a’s use of the phrase “based

on,” pointing out that the Supreme Court has equated it with

“because of” or “but for.” Safeco Ins. Co. of Amer. v. Burr,

551 U.S. 47, 63–64 (2007). This argument ignores the very

different functions the parallel phrases—“because of” and

“based on”—play in the two provisions. In section 623,

“because of” modifies “to fail or refuse to hire . . . .” By

contrast, in section 633a “based on” modifies

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“discrimination.” So while a section 623 plaintiff must, as

Gross holds, show that the challenged personnel action was

taken because of age, a section 633a plaintiff must show that

the personnel action involved “any discrimination based on

age.”

Indeed, it is section 633a’s more “sweeping” language

that requires us to interpret it differently than section 623.

Were the Secretary correct—that section 633a requires a but-

for test—then a plaintiff who fails to demonstrate that age was

a determining factor but nonetheless shows that it was one of

several factors would lose even though the challenged

personnel action in that scenario was not “free from any

discrimination.” Consider a case where the evidence clearly

establishes that in rejecting an applicant for a job, the federal

employer relied both on the applicant’s age and on his

qualifications relative to other applicants. If that applicant is

unable to show that age was the but-for cause, he would lose

despite the fact that the personnel action was obviously not

“free from any discrimination.” Limiting plaintiffs to proving

liability only by establishing that consideration of age was the

but-for cause of the personnel action, as the Secretary urges,

would thus divorce the phrase “free from any discrimination”

from its plain meaning. To be faithful to that “sweeping”

language, we hold that plaintiffs may also prevail by proving

that age was a factor in the employer’s decision. Our

concurring colleague is “reluctant to agree that the Congress

intended, simply by dint of section 633a’s different phrasing,

to set up a legal framework for the federal government at odds

with that for a private employer.” Concurring Op. at 1. But it

is through the “dint of . . . phrasing” that Congress speaks,

and where it uses different language in different provisions of

the same statute, we must give effect to those differences.

See, e.g., Russello v. United States, 464 U.S. 16, 23 (1983)

(“We refrain from concluding here that the differing language

14

in the two subsections has the same meaning in each. We

would not presume to ascribe this difference to a simple

mistake in draftsmanship.”).

Moreover, courts must look not for a particular quantum

of influence, as the district court appeared to do through use

of the word “substantial,” but for the existence of influence at

all. Why? Because any amount of discrimination tainting a

personnel action, even if not substantial, means that the action

was not “free from any discrimination based on age.” “Any,”

after all, means any. See, e.g., United States v. Gonzales, 520

U.S. 1, 5 (1997) (explaining that “any” has “expansive

meaning” and holding that because “Congress did not add any

language limiting the breadth of that word” the court could

not impose a limit). That said, we emphasize that the

consideration of age must have some connection to the

challenged personnel action. See § 633a(a) (“All personnel

actions . . . shall be made free from any discrimination based

on age.”). In other words, we agree with the district court and

with our concurring colleague that nothing in section 633a

prohibits the Secretary from considering age when evaluating

the overall health of the workforce, so long as that

consideration does not bleed into particular personnel

decisions.

This brings us to Gross’s second question—does section

633a require burden shifting? The parties debate this question

extensively, but the answer is easy. With respect to the

“allocation of the burden of persuasion,” Gross, 129 S. Ct. at

2351 (internal quotation marks omitted), section 633a is just

as silent as is section 623. And as in Gross, we see no

“warrant to depart” from “the ordinary default rule that

plaintiffs bear the risk of failing to prove their claims.” Id.

(internal quotation marks omitted). The plaintiff thus has the

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burden to show that age was a factor in the challenged

personnel action.

Ford insists that the district court actually did find that

age was a factor in the Navy’s decision to promote Johnson

instead of him. Although some of the district court’s

statements could be so read, the court also said that age “may”

have been a factor. Whatever the district court meant, we are

unwilling to conclude that it made definitive findings pursuant

to a legal standard not articulated until today. We shall

therefore remand to give Ford an opportunity to show by a

preponderance of the evidence that age was a factor in the

Navy’s decision to deny him the promotion.

Before doing so, however, we must resolve an additional

issue that arises from the fact that Ford could end up with a

windfall if the Navy were required to provide instatement and

backpay based solely on a finding that age played some role

in the promotion decision. As the Supreme Court explained

in a case involving retaliation for protected First Amendment

activity, “[a] rule of causation which focuses solely on

whether protected conduct played a part . . . in a decision not

to rehire, could place an employee in a better position as a

result of the exercise of constitutionally protected conduct

than he would have occupied had he done nothing.” Mt.

Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S.

274, 285 (1977). For this reason, we hold that although Ford

may establish section 633a liability by proving that age was a

factor in the Navy’s decision, thus entitling him to declaratory

and possibly injunctive relief, it is insufficient to merit

instatement and backpay. For those types of remedies, a but-

for standard of causation is necessary because, after all, if the

Navy would have made the same decision absent

consideration of age, Ford would have no right to the job.

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So, under Gross, who bears this additional burden of

proof? On the one hand, because section 633a is silent on the

allocation of the burden of proof, perhaps Ford must show, in

order to get instatement and backpay, that the Navy would

have given him the promotion but for its consideration of age.

On the other hand, because the Navy is in the best position to

establish its own motives, and because Congress imposed a

more rigorous anti-discrimination requirement on the federal

government than it did on private employers, perhaps there is

“warrant to depart” from the “default rule” and require the

Navy to prove it would have made the same decision anyway.

This issue, however, is entirely unbriefed. Moreover,

whether the issue even needs to be addressed in this case turns

on whether Ford is able on remand to show that age was a

factor in the denial of his promotion. Having flagged the

issue, we thus leave its resolution for another day.

IV.

To sum up, plaintiffs can establish liability under section

633a in one of two ways. First, they can make use of the

McDonnell Douglas evidentiary framework to establish that

age was the but-for cause of the challenged personnel action.

As we explain above, Ford has given us no basis for

questioning the district court’s conclusion that he failed to do

so here. Second, plaintiffs may establish liability by showing

that age was a factor in the challenged personnel action.

Given that the district court in this case never considered that

precise question, we reverse and remand for further

proceedings consistent with this opinion.

So ordered.

KAREN LE CRAFT HENDERSON , Circuit Judge, concurring

in the judgment:

Although I agree with my colleagues that remand appears

to be called for, I write separately to highlight two concerns.

First, in my view, nothing we write today should be

interpreted to lessen an ADEA plaintiff’s burden to show that

age discrimination affected “the particular employment

decision” challenged and not “the mere existence of other,

potentially unrelated, forms of discrimination in the workplace.”

Thomas v. Nat’l Football League Players Ass’n, 131 F.3d 198,

204 (D.C. Cir. 1997) (emphasis omitted). Here, it is far from

clear that Ford has made the requisite showing of causality.

While the district court found that age “tinged” the hiring

process, Ford v. Winter, No. 08-0507, slip op. at 4 (D.D.C. Jan.

15, 2009), it also rejected any connection between the Navy’s

institutional concern with age and its particular decision not to

select Ford for the branch head position, concluding: “The

problem would be, of course, if in the individual case somebody

looked at somebody else and said, well, he doesn’t fit the

profile; we’ve got to have a younger guy here. I didn’t find any

evidence in this case that that was actually done.” Trial Tr. at

323 (Dec. 16, 2008).

Second, I am reluctant to agree that the Congress intended,

simply by dint of section 633a’s different phrasing, to set up a

legal framework for the federal government so totally at odds

with that for a private employer and, if so, why.* Although we

*

The majority invokes the old chestnut that “where [the Congress]

uses different language in different provisions of the same statute, we

must give effect to those differences.” Maj. Op. at 13-14. I of course

agree with that familiar rule of statutory construction but where the

statutory language appears within a complex regulatory scheme that

has been the subject of varying judicial interpretation, see, e.g., Aliotta

v. Bair, 614 F.3d 556, 561 (D.C. Cir. 2010) (section 633a requires that

age have “determinative influence” (quoting Reeves v. Sanderson

2

once described section 633a as “sweeping,” our characterization

should be understood in the context of the question then before

us: whether section 633a prohibited age-based retaliation

notwithstanding the absence of a specific provision addressing

retaliation. Forman v. Small, 271 F.3d 285, 295-99 (D.C. Cir.

2001). As the U.S. Supreme Court explained in Gomez-Perez v.

Potter, section 633a is sweeping only in the sense that it

“contains a broad prohibition of ‘discrimination,’ rather than a

list of specific prohibited practices.” 553 U.S. 474, 487 (2008).

Nevertheless, in declaring that section 633a prohibits age

discrimination across a broad swath of personnel actions, neither

we nor the Supreme Court implied that section 633a requires a

lesser quantum of proof than does section 623.

Nor do I share my colleagues’ confidence that Gross v. FBL

Financial Services, Inc. unambiguously “directs” us in our

interpretation of section 633a today. Maj. Op. at 11. The Court

in Gross compares the particular text of section 623 of the

ADEA with its Title VII analogue and, plainly, does not touch

on section 633a. 129 S. Ct. 2343, 2348-51 (2009). Given its flat

declaration that the mixed-motives theory “is never proper in an

ADEA case” and its criticism of the burden-shifting framework

set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),

however, it is difficult for me to conclude the Court would

endorse the reading we announce today. Id. at 2346, 2351-52.

Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)); Forman v. Small,

271 F.3d 285, 292, 294 (D.C. Cir. 2001) (“a determining factor” or “a

substantial factor”); Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C.

Cir. 1982) (Cuddy I) (“a determining factor”), we should be hesitant

to read textual differences reflexively to signify such a departure from

our earlier understanding.